Law Prof "Bill is Unnecessary"

These comments were made on October 18, 2023 to the members of the Standing Committee on Health

Mr. Patrick Taillon (Professor and Associate Director of the Centre for Constitutional and Administrative Law Studies, Faculty of Law, Université Laval, As an Individual): 

  Thank you, Mr. Chair.

    I would first like to thank the members of the committee for this invitation to testify about Bill C‑293.

    Right from the outset, I'd like to share three criticisms of the bill.

    First, it's an unnecessary bill in many ways; second, it distracts us from the real issue; and third, it contravenes the principle of federalism and provincial jurisdiction in the health field.

    First of all, it is unnecessary, to some extent, because it aims to set up a preventive bureaucracy. Cabinet members, along with senior federal government officials, already have all the latitude they need to assess, forecast and anticipate the next crisis. It's already their role to do so. They don't need legislation to do it. It's already part of their job description.

    Next, it's a bill that distracts us from the real issue, which is the need to take stock of federal action during the last pandemic. It seeks to anticipate the next crisis on all fronts, including those outside federal jurisdiction, rather than focusing on the important issues. Why was the federal government so slow to shoulder its responsibilities during the COVID-19 crisis? Why was it so slow to manage border controls, which are its responsibility? Why was border quarantine so slow to be established? Why did cities like Montreal have to try to make up for the federal government's shortcomings? Why were the maritime provinces forced to create borders within Canada to compensate for federal inaction? Why was the slowness in establishing rules and procedures to manage the crisis accompanied by a delay in withdrawing the measures at the end of the crisis? Why was the federal government always two or three steps behind?

    The bill's ambition to coordinate everything is very unhealthy. It's a distraction. It deprives the federal government and its administration of a critical examination of its own action. Above all, the bill clashes with federalism and the provinces' common law jurisdiction in health matters. It is the manifestation of a centralizing intention, of the idea that everything would be better managed if it were coordinated from above. This standardizing ambition is clearly evident. It is evident, for example, in paragraph 4(2)(c), which states that care must be taken, with the provincial governments, to “align approaches and address any jurisdictional challenges [...].”

    “Align” means everyone doing the same things, which is a euphemism for saying that we're really trying to standardize everything. To “standardize” is to deprive ourselves of the contribution of grass-roots initiatives, and of the freedom and autonomy that have made it possible for certain provinces within the federation to do well, and for others to imitate them. If we centralize and standardize everything, that means that, in the next crisis, the mistakes we make at the top will be made uniformly across Canada. This is the opposite of the spirit of autonomy and freedom that federalism implies.

    The same section also mentions “the collection and sharing of data.” Once again, this is a euphemism for a form of accountability in which the provinces are required to provide information in areas where they are nonetheless fully autonomous.

    In closing, let me say that we shouldn't be naive. If the prevention and coordination work proposed in the bill is not really about decision-making, in that case we don't really need a bill, since the administration already has all the freedom to do the necessary reflection and coordination work. If, on the other hand, we're really looking to delegate new powers to the administration in order to coordinate and harmonize some things with the provinces, that means we're really looking to distort Canadian federalism, i.e., a federalism in which the bulk of responsibility for health care lies with the provinces.

    Thank you.